Baroness Anelay of St Johns: My Lords, the Minister has explained why she feels it appropriate for this House not to insist upon its original amendment. My amendment would have ensured that the Secretary of State could not lay a statutory instrument containing an order regarding the alteration or merging of police areas unless that course was requested by the police authorities that would be affected by any changes. The other proviso was that the Secretary of State believed it was right and in the interests of the efficiency and effectiveness of policing. We objected to the Government's plans to press ahead with forced mergers. When we argued the merits of our case in Committee, the House agreed with us by a margin of 198 votes to 130, so I should put on the record, however briefly, the reasons why we appear to be backing off from that strong position.
	During the summer the Government signalled that enforced mergers were going deeper and deeper into the long grass. We remained concerned that they might bring back their plans when the fuss had died down and public attention had perhaps been drawn to other, more objectionable policies. On Report I tabled an amendment on the importance of a cost benefit analysis to ask the Minister to put on the record an assurance about the Government's plans with regard to forced police mergers.
	The Minister set out her assurances in detail on 9 October at cols. 61-62. We then had the opportunity to consider her words very carefully. We believe that the words she uttered before the House then, together with the assurances put clearly on the record by her honourable friend Mr McNulty in another place, provide sufficient reassurances for this House to rely upon. That is why we have not tabled an amendment today to object to the Government's Motion, which overturns the decision of the House made in June. We remain convinced that mergers should proceed at some future date if, and only if, they are with the consent of all the police authorities concerned in that merger or alteration, and if the Government have demonstrated persuasively that the key principles set out by the Minister are met. In the interests of time I will not repeat those principles today.
	With regard to the financial implications referred to by the Minister, it is right that I put on record my own concern about the announcement made by the Home Office on Monday—that it would pay police forces just £4 million to reimburse them for the money they were forced to spend on the abandoned police mergers programme, when the real costs incurred were £6.5 million. My own police force in Surrey is one of those that is, as a consequence, unfairly treated, because of the capping of payments to a maximum of £100,000 per force. Surrey had to incur expenditure of £649,311. As Bob Jones, chairman of the Association of Police Authorities, pointed out, the failure to reimburse all the money was not just regrettable; the money police authorities spent was money that would otherwise have been spent on improving local policing for local communities.
	We rely on the assurances given by the Minister and by Mr McNulty. We therefore believe that if the Government were to bring forward proposals for forced mergers at some future date, this House would be justified in relying upon those assurances and in taking a view on whether it should take the somewhat unusual step of objecting to a statutory instrument being made. In the mean time, for the reasons I have set out today, I do not object to the Government's Motion.

Lord Goldsmith: moved That this House do not insist on its Amendment No. 5 to which the Commons have disagreed, but do propose the following amendments in lieu thereof—
	5B: Page 8, line 33, leave out "as follows" and insert "as set out in subsections (2) to (4)"
	5C: Page 9, line 4, at beginning insert "(subject to section 23A)"
	5D: Page 9, line 4, leave out "(as to which see section 23A)"
	5E: Page 9, leave out lines 18 to 22 and insert-
	"(1) A condition that the offender pay a financial penalty (a "financial penalty condition") may not be attached to a conditional caution given in respect of an offence unless the offence is one that is prescribed, or of a description prescribed, in an order made by the Secretary of State.
	(2) An order under subsection (1) must prescribe, in respect of each offence or description of offence in the order, the maximum amount of the penalty that may be specified under subsection (5)(a).
	(3) The amount that may be so prescribed in respect of any offence must not exceed-"
	5F: Page 9, line 25, leave out "£500" and insert "£250"
	5G: Page 9, leave out line 30 and insert-
	"(5) Where a financial penalty condition is attached to a conditional caution, a relevant prosecutor must specify-
	(a) the amount of the penalty,"
	5H: Page 10, line 4, at end insert-
	"( ) In section 330 of that Act (orders subject to affirmative resolution procedure), in subsection (5)-
	(a) in paragraph (a), before "section 25(5)" there is inserted-
	"section 22(3C),";
	(b) after that paragraph there is inserted-"(aa)an order under section 23A(4) which makes provision- (i)increasing the fraction in section 23A(3)(a), or (ii)increasing the figure in section 23A(3)(b) by more than is necessary to reflect changes in the value of money,"."

Lord Goldsmith: My Lords, I beg to move Motion B standing in the name of my noble friend Lady Scotland. The Motion is that this House do not insist on its Amendment No. 5 and do agree with Amendments Nos. 5A to 5H in lieu thereof.
	When we debated this matter previously, I explained to the House why we are seeking to broaden the scope of conditional cautions by adding a punitive objective to the objectives of reparation and rehabilitation currently allowed by the legislation. Conditional cautions have been operating in a number of areas and have been successful. The usefulness of the scheme has, however, been limited largely to those offenders who have personal problems linked to offending and to deal with offences where there is an individual victim who has suffered quantifiable loss. It has not been possible, for example, to provide for indirect reparation by way of unpaid work.
	There are a number of safeguards in the legislation to ensure that it will operate within a proper framework. There are measures to protect the rights of the offender, including the opportunity of free legal advice, the requirement of an admission of guilt by the offender, and the acceptance of the conditional caution in writing. I emphasise again that a conditional caution can be considered only in cases where there is sufficient evidence to prosecute. At all times, an offender can choose to reject the offer of a conditional caution and instead go to court. In the event of non-compliance with a conditional caution, the offender can be prosecuted for the original offence; there is no separate penalty for failing to comply with the conditions although they were accepted before. The offender always has a choice. We believe that, as the Joint Committee on Human Rights found in 2003, those safeguards will continue to ensure that a person's consent to a conditional caution is not coerced.
	However, during previous debates on this matter, it was clear that concerns remained about the level of discretion that would be available to prosecutors, particularly with respect to the financial penalties. We have listened carefully to the concerns and we have brought forward amendments to address this point.
	The amendments proposed for insertion into Clause 15 would effect a number of changes dealing with financial penalties. First, Amendment No. 5E proposes reducing the maximum amount of any financial penalty that can be required from £500 to £250. That figure may be more commensurate with the level of minor offending that we are seeking to encompass in the remit of the scheme. If in the future any changes are needed, they will be subject to the affirmative resolution procedure, except for changes arising solely from changes to the value of money.
	Secondly, new subsection (1) of Section 23A of the 2003 Act, which would be inserted by Amendment No. 5D, would have the effect of requiring that financial penalties could be used only in respect of a set of offences specified in secondary legislation, subject to the negative procedure. Noble Lords may think this is a significant issue, because concerns have been expressed about what offences would come within the ambit of the financial penalties for conditional cautions, and this means that they would be prescribed in secondary legislation.
	Thirdly, new subsections (2) and (3) inserted by Amendment No. 5D would require that secondary legislation would specify in relation to each offence the maximum penalty for that offence or group of offences. We plan to do this by grouping offences into bands according to the seriousness of the offence and attaching to each a proposed maximum penalty. The prosecutor would not be able to require a financial penalty that was above the maximum amount for the offence in question. So that already narrows the area of prosecutorial discretion to maxima that had been set in a statutory instrument subject to negative resolution procedure.
	We propose also that the secondary legislation provides that the prosecutor has some discretion to reduce the amount of the specified penalty for the offence committed to take account of the offender's means and the overall proportionality of the conditions. I mention that because in Committee the noble Baroness, Lady Anelay, pressed on me the importance of taking account of the means of the offender and of the overall proportionality of the conditions. I agreed with the noble Baroness that if an offender was subject to a condition—perhaps a reparative or rehabilitative condition—it was right to take that into account in determining what, if any, financial penalty was proposed.
	Our proposal is to provide for an ability to reduce the specified penalty proposed as a conditional caution to take account of those features. I hope noble Lords will agree that that is a proper way to strike the balance between the proper concerns that have been expressed by the noble Baroness and the concerns expressed in the previous debate.
	Finally, Amendment No. 5G makes subject to the affirmative resolution procedure any proposed changes to the maximum hours, which are set at 20 in the Bill. That would also apply in respect of any proposed changes to the fraction that can be required in relation to the maximum penalty for which an individual would be liable on summary conviction for the offence in question. The same safeguard as that being offered regarding the penalty is being offered in relation to the number of hours—that they cannot be increased without an affirmative resolution, except in respect of changes in the value of money as regards the financial penalty. I hope that noble Lords will agree that the amendment directly addresses the concerns that have been expressed.
	We believe that the clause is a sensible and considered addition to the conditional caution scheme and provides the opportunity to deal fairly with offenders who are willing to admit their guilt and allows for a swift and proportionate response with adequate safeguards.
	Moved, That this House do not insist on its Amendment No. 5 to which the Commons have disagreed, but do propose Amendments Nos. 5B to 5H in lieu thereof.—(Lord Goldsmith.)

Lord Lloyd of Berwick: My Lords, at Third Reading I pointed out that the clause as proposed was contrary to a basic principle of our constitution in that it is not for the police or the prosecution to have any hand in sentencing an offender. That is a question for the courts. When I asked the noble and learned Lord the Attorney-General how the argument that he was advancing regarding the clearing of graffiti would apply in the case of a fine, he said that he would not shy away from that difficulty. But it remains a difficulty and I believe that the way that the noble and learned Lord dealt with it was unsatisfactory. The fact is that a fine is a fine, a fine is a punishment and a punishment is totally inconsistent with the idea of a conditional caution, as originally envisaged in the 2003 Act.
	I also made a point that was made by many others, not least by the noble Baroness, Lady Anelay, that this is a radical departure from principle, which has been introduced without any consultation. All those I have consulted—we know the view of the Magistrates' Association—are, I shall not say as horrified, but are certainly as surprised as I am horrified.
	The amendments do not answer my basic constitutional objection and I remain rootedly opposed to this clause. But I acknowledge that the Government have tried hard in these amendments to reduce the impact of the clause. The reduction from £500 to £250 is welcome, as is the plan to specify the offences to which the conditional caution will apply and to set separate maxima for each offence. That certainly reduces the discretion. There is still a level of discretion left to the prosecuting authorities which, as I say, I find objectionable. If the amendment were left as it is, I would still find it difficult to accept.
	Since then the noble Baroness has written to the noble Baroness, Lady Anelay, with a copy to me—which unfortunately I did not receive, but I have now seen a copy—in which she makes certain further suggestions. She says that the intention is not to specify separate maxima for each of the new offences which are to be specified, but to have a norm; in other words, that will be the figure, unless that figure is reduced having regard to the impecuniosity of the offender and one other matter.
	That seems to put a different picture on the amendment; because it then becomes much more like the ordinary penalty charge which we all understand and to which no one has ever had an objection. I understand that this will be a penalty of a certain amount unless the amount is reduced because of the impecuniosity of the offender. That seems to me to be much more reasonable and much more understandable. I still have my rooted objection, but if in replying we could be given an undertaking that that is what is intended—a norm subject to a reduction—I, for one, might find it difficult to resist the amendment.

Baroness Anelay of St Johns: My Lords, we remain concerned that the Government are taking our judicial system down a route that could lead to the widespread use of administrative punishment instead of the impartial hearing that is given in a magistrates' court. Fair trial safeguards and the involvement of the independent court in the delivery of punishment are in the wider public interest and in the interest of the victims of crime. As the noble Baroness knows, I would have preferred to have seen the full report on the operation of conditional cautions, as introduced in the Criminal Justice Act 2003, before we pressed ahead with extending them to punishment.
	This morning I have been in contact with the Magistrates' Association and I have made sure that the noble and learned Lord's office knew that. I know that the Magistrates' Association shares our concern that these proposals breach the basic principle that sentencing is a matter for the independent judiciary and will still breach that principle despite the concessions offered today.
	Why am I not opposing the government amendment and why have I not tabled a Motion? We have very carefully considered the arguments set out on Report by the noble and learned Lord the Attorney-General (at col. 130 of the Official Report of 10 October) that the law currently prevents an offender who has admitted criminal damage from being able to carry out restorative work when the damage has already been dealt with and that the law prevents him from being ordered to carry out other work in lieu—the indirect reparation to which the noble and learned Lord referred in moving the government Motion.
	We have certainly considered that and we see the practical arguments behind the Government's reasons for wishing to press ahead on such a basis. Today the Attorney-General has come forward with amendments that do much to allay the concerns that I brought forward in Committee. I am grateful to him. They should restrict the degree of discretion which may be exercised by prosecutors in relation to imposing punitive cautions that effectively impose a fine and, despite that, as the noble and learned Lord, Lord Lloyd of Berwick, said, we seem to be shifting, I hope—by the nature of what may be happening—from regulations towards more of a fixed penalty.
	I am certainly grateful to the noble and learned Lord the Attorney-General for arranging meetings on these matters yesterday. Although, of course, we had seen the published government amendments that came out on Monday, when I met the noble and learned Lord I was not aware of the letter that was winging its way to me from the noble Baroness which gave further explanation. It was not on my desk when I went to see the Attorney-General, but a quarter of an hour later, when I got back, it was on my desk. I only hope that the noble and learned Lord did not think I was looking somewhat vacant and surprised when he made some of his proposals—they certainly came fresh to my mind. It means that today we do not have to object to the Government's Motion.
	It was constructive to hear that the Government will prescribe, in secondary legislation, the offences to which a financial penalty will apply. That is in the printed amendments. However, as we were told in the letter, the practical application is that only a limited range of offences will be prescribed. That is important. They will be listed in banded groups, giving a limited discretion to take the offender's financial circumstances into account. I agree entirely with the noble and learned Lord, Lord Lloyd of Berwick, about the financial advantages of that.
	We shall, however, wish to monitor closely the use of the punitive conditional caution. It should not be an "Open Sesame" for widening administrative punishment without conclusive evidence being produced to both Houses that it is both necessary and appropriate. But, as a result of today's amendments and the further clarification in the Government's letter, we do not object to the Motion.

Baroness Anelay of St Johns: My Lords, I support all the points made by the noble Lord, Lord Ramsbotham. I agree that the Government's Motion should be accepted today. When the Minister tabled the raft of amendments at Third Reading in this House, that effectively ended the Government's plans to put structural changes to the prisons inspectorate into statute. However, we were concerned that the late tabling of those amendments—a matter of minutes before tabling closed—meant that noble Lords were unable to scrutinise them and certainly unable to table amendments to them, as manuscript amendments are, of course, not permitted at Third Reading.
	At Third Reading, the Minister stated that refinements might be made in another place. I was intrigued to find that the exact wording, at col. 803 in Hansard, was "minor technical adjustments", to which the noble Baroness has referred today. In any event, the Government's changes tabled for today are certainly welcome. They are more than technical adjustments; they make it possible for us to remove any objection that we would otherwise have had today.
	The noble Baroness referred to consultation. The Government's amendment on that is hugely wordy and convoluted. Ours would have been better, but there we are—never mind, we will accept the Government's roundabout way of doing it.
	On the Secretary of State's powers, the Government are trying to assure us by saying, "Never mind, this won't really mean what it says", which is that the Secretary of State interferes. We hope that this is an administrative matter and will not mean any diminution of the Chief Inspector of Prisons' authority. The noble Baroness today said that the Government—and of course they would say this—wish to retain the option of reintroducing the merger programme at some future date, given the results of the programme for working together, which we know that the inspectorates wished to do in the first place.
	The noble Baroness will not be surprised if I say that, if any such proposal is put forward, experience of debates at Second Reading, in Committee, on Report and at Third Reading will show that this House will rigorously examine the Government's case before it will agree to the creation of the mega-inspectorate that was first proposed. We have arrived at the right conclusion by a very interesting route and I hope that we do not have to revisit the issue for some considerable time.

The Earl of Caithness: My Lords, having spoken at Report, I thank the Government for having done what they have done. That is the end of my congratulations. The way in which they did it was a disgrace to this House and prevented the House from performing proper scrutiny and the revising role at which it is so good. As my noble friend Lord Elton said, we were prevented from discussing a number of issues because we were not told of the Government's plans. I did not find out about the amendments at Third Reading until after it had taken place. I spoke very briefly to the noble Baroness that evening to express my disgust at the way in which the House had been treated. I have since rung her office and sent her two e-mails, but I have had no reply at all. I hope that this is the only occasion when the noble Baroness has not had her finger on the pulse in her usual way and that we are never treated like this again.

Baroness Scotland of Asthal: My Lords, I beg to move that the House do not insist on its Amendments Nos. 36 and 85 to which the Commons have disagreed. Your Lordships will remember that, when we last debated this issue in Committee, several noble Lords argued that these amendments were all about the failure of the United States to ratify the treaty. It may assist the House if I remind noble Lords what was said then. The noble Lord, Lord Kingsland, said:
	"The treaty is what today's debate is fundamentally about. The treaty needs to be ratified by both parties to give it binding effect in international law ... The United States has done nothing about ratification, in breach of the rules of international comity ... We believe the time has come for your Lordships' House to act. The United States Senate is, after all another upper House in an English speaking world; and we hope that a firm signal from your Lordships' House would be taken seriously by the United States Senate".—[Official Report, 11/7/06; cols. 626-27.]
	Then the noble Lord, Lord Goodhart, said:
	"I have no expectation that the Senate will approve this treaty in the remotely near future".—[Official Report, 11/7/06; col. 632.]
	The noble and learned Lord, Lord Mayhew, who was in his place just a moment ago, was very kind. He said:
	"We wish her luck ... She will be strengthened and not weakened if this House has shown, at last, that the Brits are not patsies; that they have been taken for a long enough ride ... Let it therefore arm her for the fight".—[Official Report, 11/7/06; col. 635.]
	The noble Lord, Lord Hodgson, said :
	"It will also perhaps provide some backbone to the Government's negotiations with the US, which now appears to be conspicuous by its absence".—[Official Report, 11/7/06; col. 639.]
	It was the House's intent at that time to arm me for the fight that it wished me to engage in, on behalf of Her Majesty's Government, with the United States—the Senate in particular—in the hope that it would better understand the disquiet that had been caused by its failure to ratify that treaty.

Lord Morgan: My Lords, I am not a lawyer. I think that I am the only person to speak who has no legal training, but, as they say, law is too important a matter to be left to lawyers and this matter has social, philosophical and economic aspects that involve us all.
	I supported the Government in the initial vote. I think that the noble Baroness will confirm that I was a lone voice—perhaps a rather surprising one—among the Labour Peers in giving her my warm support. I am afraid that, when I heard the speeches from the opposition Benches, I was much influenced by the famous remark of Tom Paine in The Rights of Man:
	"He pities the plumage, but forgets the dying bird".
	We had a great deal of legalistic plumage that was stroked and admired, but the point is that there are new kinds of international and global crimes from which we need legal and other protection.
	I make three points. The first has already been made and I am delighted to be on the same side as my noble friend and former pupil, Lord Anderson, who spoke with great wisdom, as he always does, on the considerable improvements that have been gained by the noble Baroness. Frankly, it would then seem to be totally absurd to erect the much higher and, as my noble friend Lord Richard said, totally impossible barrier of trying to negotiate a new treaty. That is not a serious proposition in the real world of politics, nor, I suspect, in the real world of the law, although I sometimes wonder where that is located.
	However, there have been improvements. Many of the apprehensions initially expressed seemed to be ludicrous and have been disproved. It was said that these people would not get bail, and they have. It was said that there would be various objections in the courts and, in fact—although the noble Lord, Lord Kingsland, regretted it—the courts have repeatedly supported the Government's position. The noble Lord, Lord Kingsland, did, however, make one valuable point, as he frequently does, and I again support him on this—the need for parliamentary ratification of treaties. That is not centrally germane to this debate, but it is crucial. I believe in a written constitution and that the role of Parliament should absolutely be underlined in it. Be that as it may, under the present circumstances we have had real progress. The Minister deserves the support of these Benches.
	Secondly, as I briefly indicated, we have different kinds of crime. Without proper extradition arrangements agreed by countries, global crime—crimes committed in the context of international capitalism—will simply not be dealt with. We need practical arrangements. The legal system must move on, just as international crime moves on. The globalisation of the world economy affects the globalisation of crime, and we must have robust arrangements. We cannot wait for the Greek calends, or whenever, for a fundamental renegotiation of these treaties.
	Finally, there was a great deal of patronising observation about the United States of America—although certainly not from the noble Lord, Lord Goodhart—and its legal system. It was said that the United States did not have our guarantees. I think that my noble friend Lord Anderson would agree with me that some of the observations were unhistorical. The United States in many ways has a good record on openness and swiftness of justice. As a historian, I know that the American trusts dealt with the problems of financial concentration. The giant Standard Oil of New Jersey was brought to book and dissolved as early as 1913, I think. You can go back to legislation passed in the aftermath of the Civil War—the United States is well equipped to deal with these matters. It is noticeable that the absolute capitalist scandal of Enron was dealt with in the United States; I wonder whether our authorities, which have an extraordinary record, would have been able to do the same. Last time we were discussing the issue, people suggested that these crimes should be discussed in the British system because we would get a decision. I remember thinking at the time that there was as much chance of the England football team winning on a penalty shoot-out. Our record is pathetic, and I welcome the fact that we have been given this new tool.
	To talk about the United States as somehow inferior to some of the other countries with which we have legal arrangements is grotesque. Why should we say that we have total confidence in the procedures of some of these countries in eastern Europe, but that the United States—and, even worse, the state of Texas—is somehow beyond the pale?
	I congratulate the Government. I would have congratulated the Minister before, had I the nerve to do so, but I do so with renewed zest. We need a more robust international approach to law. Incidentally, the suggestion was made that this would be disastrous for our foreign policy as well. As one who is well known as a great critic of the war in Iraq and the American stance there, I believe that to gratuitously insult the Americans over the integrity of their legal system and history, and to somehow pretend that they can rapidly alter their assumptions about law and their legal procedures, would cause reasonable offence. I hope that, at least on these Benches, the Government will be strongly supported.

Lord Boyd of Duncansby: My Lords, I hesitate to intervene in this debate, partly because I have not done so before, but also because many of the arguments have been so eloquently advanced already. However, I feel compelled to do so because I am particularly concerned about the effect of the amendments in relation to forum.
	Those amendments impose an obligation on a judge not to order the extradition of the person unless it appears in the light of all the circumstances that it would be in the interest of justice that the person should be tried in the category 1 state, which is the state seeking the extradition. There is a similar amendment for category 2 states. No guidance is given anywhere in the amendments about how one judges the interests of justice. One can have a situation where virtually all the evidence is in the United Kingdom, but the devastating consequences of the crime are felt in another state. The growth of internet crime and the free movement of peoples and goods can all contribute to such an effect. Does one judge the interests of justice by where the evidence is located or by where the effect of the crime is felt?
	From my recent experience in prosecution, I have real difficulty with sub-paragraph (2). It is here sought that, in deciding the issue of forum, the judge is to take into account whether the competent United Kingdom authorities have decided to refrain from prosecuting the person whose surrender was sought for the conduct constituting the offence for which extradition is requested.
	I accept that there is no obligation on the competent United Kingdom authority to make such a decision, but there is clearly an expectation—and, I imagine, there would be an expectation by the court—that the competent prosecuting authority would advise the court whether it had decided to refrain from prosecuting. I submit that that imposes a huge burden on the prosecuting authorities and has the effect of lengthening—perhaps considerably—extradition proceedings. In my judgment, no competent prosecuting authority would be prepared to give such an undertaking or make such a statement unless it had itself examined all the evidence. In Scotland, that would include precognition by the Crown authorities.
	We have been talking at length about white-collar crime, in which in some offences—whether it be fraud or money laundering—considerable documentation will be involved, much of it held by the requesting state. I fear that it could be a considerable time before the prosecuting authority could advise the court whether it was going to refrain from prosecuting.
	In Scotland, at least, the decision to prosecute is taken on two bases. The first is whether there is sufficient evidence to mount a prosecution. What is "sufficient" is judged according to the law in Scotland, which might be very different in the requesting state. For example, in Scotland, we require corroboration of all the essential elements of the offence. We also have strict rules about the use of hearsay—certainly stricter than the rules that now apply in England and Wales. A case may very well meet the evidential test in Scotland, but barely do so because of those tests. There may not be the same difficulty in countries seeking extradition.
	The second arm is the public interest. In Scotland, we require the prosecutor to decide that it is in the public interest to prosecute. It may be a moot point whether the public interest is to be appropriated by the interests of justice—perhaps for this purpose they are one and the same. One consideration that has historically been given weight, where there are elements of an offence in another country, is whether it would be appropriate for that offence to be prosecuted in another country. Prosecutors in Scotland have always had regard to that.
	Let us suppose that the Crown goes through the process of examining all the evidence and determining whether there is sufficiency. The Crown may come to the view that there is sufficient evidence to prosecute in Scotland, but it may very well also come to the view that it would be more appropriate for that offence to be prosecuted in the state seeking extradition. Note the important point: it is not that a prosecution is not in the public interest but that the interests of justice are better served by a prosecution in the extraditing state.
	Having gone through that process, the Crown in Scotland would presumably then be required to advise the court that it had decided to refrain from prosecuting. I ask the House to consider what happens if the request for extradition is refused. The person who is being sought will remain in this country. Presumably the question then arises whether that individual is to be prosecuted in the United Kingdom—certainly in Scotland. It may be that extradition was refused not because of the appropriateness of the forum but for some completely different reason. Noble Lords should remember that the Crown may well have taken the view that it would be in the public interest to prosecute but that prosecution should be in another country. What happens then? Does the case go back to the very authority that has already advised the court that it would refrain from prosecuting?
	Another difficulty in Scotland—I hesitate to mention it, but it is a real one—is that the Lord Advocate is barred from prosecuting once he has made it publicly known that he will not prosecute, even if he took the view that a prosecution was in the interests of justice. I submit that the amendments on forum would put in place a mechanism that is supposed to determine what is in the interests of justice but would, in fact, defeat the interests of justice.
	Finally, I find the proposition that we should renegotiate the treaty really rather alarming. I have been involved in extradition both from and to the United States and, as a recent prosecutor, I would be very alarmed if we were to return to the system that pre-existed the Extradition Act. For all those reasons, I support the Motion.

Lord Kingsland: My Lords, I am most grateful to all noble Lords who have spoken in this debate. I want to spend one or two minutes responding to some of the points that were raised. The noble Lord, Lord Morgan, referred to the very high standard in the United States of protection of individual rights. I entirely agree. The United States, through its constitution and the jurisprudence of the Supreme Court, has a record which is second to none in protecting individual rights. My criticism was not of the standard of rights in the United States. It was the fact that the Government, through this treaty, would be prepared to accept a lower standard for citizens facing extradition in this country than United States' citizens would face when we sought to extradite them from the United States. That was the point I was seeking to make.
	The noble Lord also, quite rightly, drew the attention of your Lordships' House to the nature of modern crime and the difficulties that we face in trying to defeat it. I also entirely accept that argument, which the whole debate, for example, about control orders, which took place about 18 months ago, was about. However, just because there are new sorts of crime, that does not mean we should surrender all the hard fought-for liberties of the individual in this country. We should test them very carefully against the new challenges to see whether they need to be modified, not simply abjectly to surrender them because there is a new crime that we do not recognise.

Lord Boyd of Duncansby: My Lords, I am grateful to the noble Lord for allowing me to clarify the point. What I said was that no guidance is given within the terms of the amendment that would give any clue as to how it should be judged. There are many ways of judging it. Do you judge it by where the effect of the crime is felt or where the evidence is?

Baroness Scotland of Asthal: My Lords, I beg to move that the House do not insist on its Amendment No. 71 to which the Commons have disagreed and do agree with the Commons in their Amendments Nos. 71A to 71K to the words so restored to the Bill.
	These amendments concern the Secretary of State's powers to intervene where serious and persistent police performance concerns have arisen. We have listened to the concerns raised during previous stages of the Bill and we have worked hard to accommodate them by tabling in the other place a number of government amendments. We believe that these address the concerns of your Lordships' House while ensuring that the powers remain fit for purpose.
	It is in the light of experience gained over the past four years in supporting forces to build up an effective performance regime that we have developed these proposals to update the Secretary of State's powers of intervention. The new provisions in the Bill, as first introduced in this House, will modify the reserve powers to intervene in an underperforming force or police authority. As I have previously explained, we are not taking new powers. The powers were originally introduced by the Police and Magistrates' Court Act 1994 and enable the Secretary of State to direct a police authority to take measures to improve performance in a police force where it has been shown to not be efficient or effective or will cease to be efficient or effective. I stress this last point because it is important that the House recognises that the power to intervene when there is a danger that a force or authority will fail is a long-standing one. We are not breaking new ground here.
	We firmly believe that the Government should have reserve powers to intervene in those areas where policing has fallen below an acceptable level and other non-statutory resolutions to performance issues have proved insufficient. At present, intervention can be triggered only by an adverse report from Her Majesty's Inspector of Constabulary, and experience has shown that there may well be other relevant sources of information. Examples are the findings of a public inquiry—the Bichard inquiry being a case in point—the police performance assessments and objective performance data, as well as HMIC inspection findings. That is why the Bill widens the sources of information which the Home Secretary can consider in deciding whether to exercise his powers.
	Secondly, the Bill streamlines the intervention process. In all but the most exceptional cases, statutory intervention will be considered at a point when all other means of collaboration and support have been attempted but performance has failed to improve. Policing is a service delivered and governed locally and it must be performed to a consistent and acceptable standard in all our communities. The responsibility for ensuring that such a service is provided rightly resides with the chief constable and the police authority. None the less, there may be occasions when it becomes clear that an area is receiving an unacceptable standard of policing and the local force and authority have been unable to take the necessary steps to address this.
	In that respect, we recognise the strong feeling expressed about the changes which would allow the Secretary of State on some occasions to direct a chief constable on performance matters and not to have to route this direction through the police authority. The amendments agreed by the other place restore the position under the Police Reform Act, which routes the intervention power through the police authority on all occasions—something which I know will give the noble Baroness, Lady Harris, to name but one, a considerable amount of satisfaction. The amendments recognise that it is the police authority which is primarily charged with holding the chief constable of a force to account.
	The second main point of concern has focused on what we feel is misrepresentation of the intent of these powers, namely that the Secretary of State should use them on a whim or for a trivial purpose. We have made it clear throughout that they are intended to be used only when serious and persistent performance concerns have arisen and other attempts to address these have failed. These are powers of last resort and the revisions are intended to be used only in cases in which the force or authority has had an opportunity to make improvements and the decision to intervene is based on sound evidence.
	To provide further reassurance on this point, we have introduced an amendment which requires the Secretary of State to consult Her Majesty's Inspectorate of Constabulary when he proposes to use these powers in relation to a police force or police authority. Furthermore, the Secretary of State will be under a duty to publish the inspectorate's opinion on the evidence leading to that proposed course of action. This will ensure that the inspectorate's professional, independent advice is available to the Secretary of State on whether the use of the powers is, in its opinion, the right course of action. This provides confidence that the inspectorate's opinion will be taken into account when deciding whether to invoke the powers.
	Our proposals are intended to provide the Government with effective but proportionate intervention powers of last resort. We have listened to some concerns about how they might be interpreted or used and have responded accordingly with some specific safeguards. On Report, the noble Baroness, Lady Harris of Richmond, indicated that while her preference was to remove these provisions entirely from the Bill she recognised that it was sensible to have a plan B. I suggest to her that the amendments made in the other place deliver her plan B and, in particular, address her concern that it would—in her view—be unconstitutional for the Home Secretary to be able to give directions to a chief officer. Given the additional safeguards we have introduced, I urge the House not to insist on its Amendment No. 71.
	I have taken some time dealing with this matter, because there are many issues on which noble Lords want assurance. I hope that I have given all the assurances that will enable noble Lords to allow this amendment to pass swiftly from your Lordships' House.
	Moved, That the House do not insist on its Amendment No. 71 to which the Commons have disagreed and do agree with the Commons in their Amendments Nos. 71A to 71K to the words so restored to the Bill.—(Baroness Scotland of Asthal.)

Lord Davies of Oldham: My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 1.
	On 15 December 2005, the Secretary of State announced that the current "netting off" funding arrangement for safety cameras operating within the national safety camera programme is to cease at the end of March 2007. From April 2007, all fines from speeding offences will go to the Treasury in the same way as any other fine, so there will no longer be a surplus of fine revenue. This means that the provisions in this clause will no longer be appropriate and, as such, the clause will not be needed.
	Under new funding arrangements, local authorities will receive additional money for road safety through the local transport plan process—some £440 million over four years. The money will be available for funding safety cameras, but equally it will be available for funding any other form of road safety initiative. So, the Government will deliver the level playing field on funding that may be one of the purposes of Clause 2.
	This new arrangement will mean that safety cameras and other road safety measures will be funded in exactly the same way. Also, it will integrate safety cameras into the wider road safety delivery process and give local authorities and road safety partners greater flexibility to implement whichever locally agreed mix of road safety measures will make the greatest contribution to reducing road casualties in their area.
	Furthermore, the revised funding arrangements that the Government are introducing from 1 April 2007 have two clear and important advantages as compared with the provisions of Clause 2. First, Clause 2 could give an incentive to local authorities to seek to increase the amount of fine revenue generated by safety cameras, because that would increase the surplus funding which Clause 2 would make available for other local transport purposes—whereas, under the funding arrangements being introduced by the Government, there would be no possibility of such a perverse incentive.
	Secondly, the arrangements being introduced by the Government will give to local authorities and their local partners much greater stability and certainty about the amount of funding available. If local authorities had to rely on surplus fine income from safety cameras, that could be unstable and uncertain, because the objective of the camera programme, which we all share, is to improve compliance with speed limits, which will reduce the level of fines over time and hence also reduce the level of any surplus—and very possibly lead to a deficit, where the costs of operating cameras are greater than the income from fines generated from camera detections.
	I must ask the noble Lord, Lord Hanningfield, whether it is really his intention that local authorities which succeed in improving compliance with speed limits, thereby reducing the income from speed cameras, should be penalised by receiving less money for other transport purposes. Is it his intention that local authorities which succeed in driving up the level of fine income from cameras by whatever means should be rewarded by receiving more funding for other transport purposes? Those would be the effects of Clause 2.
	In the Government's view, the clause would create perverse and dangerous incentives. As it is, some motorists suspect that the safety camera scheme is a revenue-generating device. That is a widespread misapprehension among motorists and others. There is currently no justice in that suspicion, but if Clause 2 were enacted, there would be real grounds for it. That would be damaging, because it is important that the Government's road safety policies should command the respect of the great majority of road users, including motorists.
	Finally, I must advise the noble Lord that Clause 2 is technically defective in at least three respects. First, it refers to,
	"income from the enforcement of offences under subsection (2)",
	which is an inaccurate phrase of uncertain ambit and could well extend to income from offences detected by police officers as well as offences detected by cameras. Secondly, it refers to a "relevant national authority", which is a strange and undefined notion; by contrast, Section 38 of the Vehicles (Crime) Act 2001 confers powers on the Secretary of State. Thirdly, there are other undefined terms such as "safety camera scheme", "relevant local transport authority" and "local transport facilities". The noble Lord may think I am nitpicking—he does—but this legislation is at a very late stage and our obligation is to ensure that it is as accurate as possible.
	The crucial point is that Clause 2 is now no longer necessary. Given the changes which the Government are making as from next April, Clause 2 would also create dangerous and perverse incentives. The clause is seriously defective. I hope the noble Lord, having pursued these issues with his customary assiduity, will on this occasion feel that he can safely withdraw his amendment.
	Moved, That the House do agree with the Commons in their Amendment No. 1.—(Lord Davies of Oldham.)

Lord Hanningfield: My Lords, I shall be as brief as possible. It is interesting to note that it is exactly one year ago this month that we first discussed this amendment in your Lordships' House. I declare an interest as leader of Essex County Council, as this amendment is relevant to local government.
	Noble Lords will recall that this new clause is designed to enhance local road safety measures by permitting the hypothecation of surplus income from safety camera enforcement for expenditure by relevant local transport authorities on road safety measures. In short, it is intended to provide a source of funding that will enable local expertise to be translated into local road safety initiatives in a manner that is both responsive to and commensurate with the character of local problems.
	The figures are quite striking. In 2000-01, there were only seven camera partnerships which took just over £10 million in fines and spent just under £9 million, leaving a balance of a little over £1 million, which went into the consolidated fund—better known perhaps as the Chancellor's black hole, which the Minister has just mentioned. That balance was 13 per cent of the funds in 2001. What is fascinating is that there has been a spectacular increase in income and in the number of partnerships. There were about 35 partnerships in 2003-04 with receipts of £112 million and an expenditure of £92 million, leaving £20 million going to the Chancellor. Not only have receipts increased approximately tenfold, but the balance going to the Chancellor as a percentage of total receipts has increased from 13 per cent to 18 per cent.
	Ten years ago around 200,000 speeding fines were issued. That figure has now rocketed to 2 million. At the same time, the number of traffic policemen has fallen from 9,000 in 1997 to 7,000 in 2005. Therefore, we are worried that there is too much dependence on mechanical, fixed forms of enforcement and not enough on human beings—policemen—who can take account of varying conditions. We are also concerned about the serious failing in the Government's strategy. That very point was echoed by the report published yesterday by the Transport Select Committee, which stated that the country needed greater numbers of traffic officers to enforce existing traffic laws. The committee chairman, Gwyneth Dunwoody, went further and said that cameras are a useful tool but could not replace officers. It is exactly that type of electronic policing, blunt and arbitrary as it is, that is causing rather a lot of anger around the country.
	This amendment is not about whether cameras save lives or reduce accidents—clearly evidence suggests that in most cases they do—but about bringing a greater degree of transparency and openness to the process of road enforcement and allowing people the chance to see that surplus revenues are being spent directly on road safety measures. Speaking of my own county, we could be as much as £6 million better off, and that money would provide so many more road safety projects. I am quite happy that the money should be hypothecated to road safety. That would be much more transparent compared with it going to the consolidated fund and not knowing whether or not we get that money.
	A few months ago, in some press articles, the Government hinted that they were interested in operating a scheme that we had been suggesting. I believe that it is not too late for the Government to bring forward their own amendment and include it in this Bill. I hope that they will give some serious thought to it. I am sure that we would work with them to tidy up the amendment to make it appropriate. This is an important transparency issue. I beg to move.
	Moved, as an amendment to the Motion that the House do agree with the Commons in their Amendment No. 1, leave out "agree" and insert "disagree".—(Lord Hanningfield.)

Lord Davies of Oldham: My Lords, I am grateful to noble Lords who have spoken in support of the amendment, defective though it is, as I have explained. Although we have a difference of perspective, on one thing we are agreed: cameras are about improving road safety and they have that effect. All motorists feel at times that they have been caught somewhat unawares by a camera—that is often the complaint but not often justified by the evidence—and will express a concern that they have been prosecuted or fined. Nevertheless, they recognise that they are likely to be more careful in future. Road behaviour changes in those circumstances.
	In case it is thought that while representing the Government at the Dispatch Box I might be guilty of undue bias with regard to the efficacy of cameras and other constraints, let me say that the country where the greatest transformation has taken place in the past few years has been France. Anyone who motored in France in the not-too-distant past will be aware that for the French speed limits existed as some form of entertainment to see by how much they could be exceeded. But that is no longer the case. Now there is the most rigorous observation by the French of motoring restrictions in villages—and a consequent improvement in their accident rate—because it is known that prosecution is pursued with a great deal of vigour.
	I am sure the noble Lord agrees with me that cameras play an important part in road safety. The question is: would people be even more satisfied with the activity of cameras if they could see where the resources went? That is also the burden of the noble Baroness's view: she would like to know where the resources go. We do not normally extend to any other infringement of our law the general proposition, "Well, you'll be a lot happier with the fine imposed on you if you know where the money is going". We think that the fine and the punishment are related to the offence, rather than to any desirable development afterwards to which the resources are put. The noble Lord is introducing into legislation an interesting concept, but I cannot subscribe to it.
	I have enjoyed contributions which, let me say, I heard at Third Reading, on Report and in Committee—some of them I heard at Second Reading. We are now dealing with Commons amendments, when the debate is still as protracted and the amendment still as wrong and as defective.

Lord Davies of Oldham: My Lords, I am grateful to the noble Lord. As he said, he has raised this issue both through Questions and in debates on many occasions in the past. The amendments certainly increase the powers—that is the whole point of it.

Lord Davies of Oldham: My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 5. In speaking to this amendment, I shall also indicate why I think the House should reject the noble Lord's Amendments Nos. 5A, 5B and 5C.
	I understand the noble Lord's wish to raise the profile of the retro-reflective tape issue and to see the fitting of reflective tape to all heavy vehicles at the earliest opportunity. However, I remind the House that use of the tape is already permitted and that many vehicles are already fitted with it. The tape is helpful in the hours of darkness and in conditions of poor visibility. But UK trucks are already equipped with various conspicuity aids, such as side marker lights and rear reflective number plates, so we are not convinced that the tape's road safety effects will be as great in the UK as they might be in other countries where lorries have less conspicuous aids, apart from the tape.
	I recognise the noble Lord's sincerity in wishing to bring about sooner rather than later what appears to be a sound road safety measure. But, as I have tried to explain before, if we were to regulate to require fitment of the tape in advance of changes to international requirements, we would be at risk of infraction proceedings from Brussels.
	In addition, I must point out that Clause 16 is deeply flawed in that, unlike the existing powers that it reflects, it does not have any teeth. In theory, therefore, the Secretary of State might make regulations requiring the fitment of retro-reflective tape to trucks and trailers but, if owners and operators failed to comply, they would face no penalties. It would be far better to rely on the powers that we already have. They are tried and tested, they include provision for enforcement and penalties, and we have undertaken to use them as soon as international law permits.
	It might help if I clarified the position on this subject further. Powers to make regulations about retro-reflective tape already exist, and regulations allow its use. Tape E-marked to UNECE Regulation 104 specification is acceptable throughout the UNECE, of which the European Union is a member, and many vehicles are already fitted with it. A UNECE amendment to mandate fitment of the tape for trucks seeking Regulation 48 certification is in hand and is expected to come into effect in 2009 or 2010.
	I know that the noble Lord, Lord Hanningfield, finds that unacceptable, and that the delay is there. The noble Lord will also recognise the advantages of having regulations which extend to vehicles which traverse the whole of Europe. There are great benefits in getting agreement on standard requirements for all trucks. Although I recognise the noble Lord's impatience, he ought therefore to acknowledge the Government's intention to move as quickly as we can. Nevertheless, we need this regulation.
	In addition, the UK must accept vehicles approved to the European Commission directive on lighting installation. At this time, retro-reflective tape is optional under the directive. There are plans to amend it to refer directly to UNECE Regulation 48 which is due to be amended to mandate fitment of tape. Until that time, I am afraid that the UK would be open to infraction proceedings if we introduced national requirements that were more stringent than the current optional fitment.
	Once Regulation 48 and the directive on lighting installation are amended to mandate retro-reflective tape, the UK will be able to mandate fitment on all new trucks, including UK vehicles not approved to Regulation 48. I remind the noble Lord that we have already committed to do this as soon as we can.
	However, European whole vehicle type approval for trucks and trailers is currently being developed and is well underway. This is a massive and important undertaking. The noble Lords, Lord Hanningfield and Lord Bradshaw, have been vocal about the necessity for Europe-wide regulations. It will harmonise the technical requirements for these vehicles, as has already been done for cars and motorcycles, and thus create a single market where vehicles which have been type-approved in one member state will automatically be accepted in all other member states.
	Trucks will include, among many other requirements and vehicle types, mandatory compliance with the directive on lighting installation and therefore fitment of retro-reflective tape for new N2 and N3 vehicles and O3 and O4 trailers. It is expected to come into force on 1 January 2010. Even if we ignored possible infraction procedures and set out to make specific early regulations to mandate the tape, not only does the process take considerable time but it would also, I suspect, wastefully duplicate existing ECWVTA work.
	We are also required to notify the European Commission of new or altered technical regulations; failure to do so renders that regulation unenforceable. The notification process itself takes time, and I am convinced that such regulations—even if they were not thrown out as a result of the notification procedure—would be likely to come into effect so close to the expected coming into force of the international requirements I have just described that our regulations would have little impact. In any case, such regulations would apply only to UK registered vehicles and would have no effect on the foreign vehicles on our roads, whereas a European directive would be all-embracing.
	In 2005, Loughborough University carried out a study on retro-reflective tape. The final report noted that,
	"the effect of the addition of retro reflective tape markings may not result in similar [accident] reduction rates [in the UK] as those observed in America",
	in different circumstances. It also pointed out that calculating cost/benefit ratios was difficult because limited data were available, and that the data used may, for various reasons, have resulted in an over-estimate of the reduction in the number of accidents which could be attributed to the tape.
	Nevertheless, that is a marginal argument. I have sought to convey to the noble Lord that we are as one with him on the advisability of the tape and the benefits it will bring. Under our regulations, we cannot avoid possible infraction proceedings or act much in advance of the date that Europe is setting as a target for the delivery of the requirements we need, which will govern all vehicles on British roads. That is why I hope that the noble Lord will accept the Government's case and, having moved his amendment, will consider withdrawing it after the usual useful debate.
	Moved, That the House do agree with the Commons in their Amendment No. 5—(Lord Davies of Oldham.)

Baroness Hanham: My Lords, I listened with great interest to the Minister's reply. It is interesting how many different things can be said about, for example, the Loughborough report. The Department of Transport's 2005 road casualty statistics, published on 28 September, show that despite a 1 per cent drop in the number of fatalities from road accidents, deaths from accidents involving heavy goods vehicles increased by 8 per cent to 485 in 2005, even though there are proportionally fewer goods vehicles on the roads.
	These figures represent 15 per cent of all road deaths, and clearly demonstrate that new measures are required as soon as possible to reduce this disproportionate number. Research by the Darmstadt University of Technology—the Minister did not produce that report—has found that adding retro-reflective contour markings reduced accidents involving trucks and passenger cars under poor visibility conditions by 95 per cent. The Loughborough University report, published in May 2005, to which the Minister referred, also concluded that,
	"there is a cost benefit for fitting retro-reflective line markings to newly registered vehicles greater than 7.5 tonnes".
	A subsequent consultation by the Department for Transport also indicated that there was overwhelming public support for introducing this measure. However, the Department for Transport's own research shows that this would be an effective means of saving lives and would prevent 385 collisions involving heavy goods vehicles each year. As we have heard from the Minister tonight, the Government continue to oppose its immediate introduction.
	The Minister has cited the European position, but I direct him to an earlier discussion in the House of Commons when the Transport Minister was Stephen Ladyman. He stated that if the Government were to introduce this measure it would certainly be breaking EU law and action would be taken against us, which I think is what the Minister was referring to as "infraction proceedings".
	The European Commission disputes this, and has now confirmed that this measure is likely—as the Minister said—to become mandatory across the European Union from 2010. But it has stated that member states are free,
	"to lay down national requirements concerning the use of retro-reflective markings",
	in the mean time, so we would do nothing to offend EU law if we introduced them as from now. That is the point of the amendment today.
	During the same debate, Dr Ladyman claimed that the European Commission had "started the preliminary stages" of infraction proceedings against Italy as a result of its decision to introduce this measure in 2003. The Minister even stated that there were objections to Italy's decision,
	"not only from Great Britain, but from France and Germany".—[Official Report, Commons, 9/10/06; col. 93.]
	The Commission also disputes that, stating that there are no grounds to take action against Italy and that it has,
	"not received to date any complaints concerning the Italian legislation".
	The Government also stated that the UN Economic Commission for Europe regulations do not allow contracting parties to make the ECE104 mandatory before 2010. However, Italy, like the UK, is a contracting party to the regulations but has suffered no action as a consequence of introducing the measure. Indeed, the United Nations ECE secretariat has also confirmed that it,
	"has not been informed about complaints on the Italian national legislation".
	If you introduce it, it does not seem to infringe or impinge against any European directive.
	The final argument that the Government raised against introducing this measure is that it would damage the competitiveness of the UK haulage industry. Not only would this amendment reduce the number of accidents involving heavy goods vehicles, enabling more heavy goods vehicles to remain on the road and reducing the cost of repairs, it would require only newly registered HGVs to fit retro-reflective markings at present. The Loughborough report again estimated this would cost about £100 or 0.001 per cent of the total cost of a new vehicle. Surely that is a very small price to pay for saving lives.
	The amendment has received cross-party support in both Houses. It is now clear that there is nothing to stop the Government taking action. In the light of this, I hope that the Government will support the immediate introduction of this life-saving measure and allow this amendment to stand.
	There is some disagreement about the interpretation of what the EU said and what it believes would happen, but it seems to us that there is nothing, except the Government's intransigence, to stop the fitting of these reflectors on new vehicles as from today or as quickly as the regulations can be produced. We all know that some regulations can arrive quicker than others. The time for action is now. If the Government wait until this measure is introduced across the EU, more than 1,100 collisions involving heavy goods vehicles could occur, and they could involve serious injuries and fatalities which this amendment would prevent.
	Moved, as an amendment to the Motion that this House do agree with the Commons in their Amendment No. 5, leave out from "House" to end and insert "do disagree with the Commons in their Amendment No. 5, but do propose Amendments Nos. 5B and 5C in lieu."—(Baroness Hanham.)

Lord Davies of Oldham: My Lords, again I am grateful to noble Lords and in particular for how the noble Baroness presented her case. Italy did not get off scot free. A letter was sent to Italy indicating that its law was outwith the EU requirements. It might be thought that if all that will happen is a rap across the knuckles, the British Government should be prepared to take the same action.
	However, should a second infraction of that kind occur—particularly if we were the nation that did it, with our reputation for scrupulous commitment to European regulations—it is less likely that it would be regarded as acceptable. After all, the European Union would otherwise be faced with a growing accretion of each country tackling this bit by bit and not producing the European-wide perspective which it seeks to achieve. If we carried out what is required by this amendment, we do not think that we would be able to complete this process much before the European position became rationalised.
	In passing, let me reassure my noble friend that of course when I said "all vehicles", I meant it in the sense of all vehicles in every part of Europe. I was not indicating every size of vehicle. We are clearly talking about trucks.
	I find it a little strange that the Official Opposition are so cavalier about costs. The noble Baroness seemed to indicate that the costs were marginal—£100 per vehicle. She then costed that as a minute percentage of the total costs of the vehicle. Vehicles have to be off the road while the tape is being fitted. That cost must be taken into account. If it is suggested that it is just £100 for that alone, it is a somewhat extraordinary valuation.

Lord Davies of Oldham: My Lords, if it is under construction in the factory, that is the case. What is being argued here is that we should seek to get compliance across the board with vehicles, so we would expect other vehicles to come on-stream with the provision. Certainly, that is the European intention. There is no point in having safety regulations which apply only to a limited number of vehicles.
	I have heard what the noble Baroness said. I recognise that she thinks, first, that these costs matter very little to companies and, secondly, that the effect of her amendment would be to substantially improve road safety in this country in advance of European action on this. I merely contend that we are talking about very limited gains indeed.

Lord Hanningfield: My Lords, I beg to move Amendment No. 6A, as an amendment to the Motion that the House do agree with the Commons in their Amendment No. 6, leave out "agree" and insert "disagree".
	We return to probably the most contentious clause in the Bill. I will keep my comments mercifully short because we know the arguments quite well and other noble Lords wish to participate in this debate.
	Of course we all offer our deepest sympathy to families who have lost a loved one, but I passionately believe that we have a duty to frame a law that is workable and will deliver justice. Under the clause, a prison sentence can be imposed for something that was purely an accident and simple carelessness. Jail is not a suitable punishment for an act of carelessness. The provision will result in the criminalisation of many ordinary members of society. Of vital importance is the absence of criminal intent which is necessary in the conviction of other crimes that carry similar custodial sentences. Careless driving is very different from dangerous driving and from carelessness resulting from taking drink and drugs, even though the effects of those offences may be similar.
	Under the current wording, a person would be guilty of careless driving if their driving fell below what would be expected of a careful and competent driver. That is markedly different from the test of culpability for dangerous driving. To be convicted of dangerous driving, a driver must have been driving in a way that, to a competent and careful driver, would be obviously dangerous—in other words, doing something that they know they should not be doing. There is no such requirement for the new offence of causing death by careless or inconsiderate driving. Instead, a person may commit the offence not only without intent but without even realising the nature of such carelessness.
	We are not arguing for this new offence to be struck from the Bill; we are trying to ensure that the punishment fits the crime. Importantly, the punishment should reflect the standard of driving, not the consequences. We therefore cannot and will not support this excessive punishment proposed by the Government. A custodial sentence is a completely disproportionate punishment for such an offence. This amendment therefore seeks to remove the custodial element from the Bill. Furthermore, it should be left to the courts not the Government to decide the severity of the punishment and the actual offence committed.
	Moved, as an amendment to the Motion that the House do agree with the Commons in their Amendment No. 6, leave out "agree" and insert "disagree".—(Lord Hanningfield.)

Lord Lyell of Markyate: My Lords, I have always been grateful to the Minister and his colleagues for the courtesy with which they have accepted my opposition to this Bill and the help that they have given me in meeting Ministers, Home Office officials and the families of those whose genuine bereavement and upset is driving this clause.
	This clause will do two things. It is wrong in principle and is likely to do serious injustice. A third point is that it is likely to confound expectations—people will be disappointed at the extent of its effect, because it will be terribly unjust. To put unjust measures on the statute book is a deep mistake which devalues the effect of justice for those who have been rightly sent to prison for dangerous driving. They will simply say, "It's a lottery".
	Why is it wrong in principle? Nowhere in this country, except in the most arcane areas, do we send people to prison for ordinary negligence. I was astonished to read the Secretary of State say in the other place, as the basis of his argument, that taking a life is taking a life, no matter how it is done—in other words, the fact that, tragically, careless driving leads to a death means that there ought to be a prison sentence available. We do not take that view. Will that view apply to industry, where employees are sometimes tragically killed because of a breach of the Factories Act? Will it be taken in construction, or education when people take children on trips? Will it be taken in medicine or in transport generally? It is contrary to principle in this country to send people to prison unless you reach the broad standard of gross negligence. Ordinary negligence—ordinary carelessness—sad though it is and tragic though it can be, is something for which we do not send people to prison, and we are entirely right.
	Secondly, there is likely to be serious injustice because the clause blurs the at present very clear distinction between dangerous driving and careless driving. Dangerous driving is driving that falls far below the standards to be expected of a competent and careful driver in circumstances where it would be obvious to a reasonable driver that what they were doing was dangerous. In other words, it has an element of intention or recklessness. If that is the case, it would be perfectly right and proper that a prison sentence should be available and sometimes imposed—and, indeed, that sometimes a very severe prison sentence should be imposed.
	I am in no way soft on this issue. I commend the Government's actions in relation to speeding, which are doing a lot of good. When I was Attorney-General, I—like my predecessor—brought a number of cases before the Court of Appeal and sentences in practice were greatly increased. A lot of right and proper things have been going on and are being maintained by this Government. But this is a very serious mistake. How will defendants know how to behave? They will find themselves accused of dangerous driving, but they will be equally likely to be sent to prison if found guilty of careless driving. How will they know what the ingredient of dangerous driving is and where the line comes between that and careless driving? How will they know which aspect the prosecution is saying is the real nub of the matter?
	At present and very properly, the Crown Prosecution Service has to decide whether there is sufficient credible evidence to give rise to a realistic prospect of conviction for dangerous driving or careless driving before bringing such a case. When the case is presented, the essential ingredients are stated to the court, the defendant knows what he has to meet, and justice can be done. This will blur that situation. The defendant will not know until the sentence is given where the nub of the matter lies. As my noble friends have said—I strongly support what they have said from their practical experience—this will have unintended consequences. There is a serious danger that more people will be unwilling to plead guilty. There is also a danger that juries, thinking that this is an unfair law, will acquit in circumstances where someone might even have pleaded guilty if they had not felt it necessary to air the whole matter.
	It saddens me tremendously to see the Government going down a route that will lead to serious injustice. The hour is late and I have put the essential points. I very much hope that the Government will not sit on what was a purely technical oversight in this House and cling to their five years in the Crown Court simply because an amendment was not moved. I had not understood that that was remotely the Minister's intention. I thought that we were at least being allowed to debate the matter so that it could be handled properly one way or the other. It would be a great mistake to introduce a prison sentence for careless driving when, very sadly, a death has followed a case of carelessness. It does not help a tragedy to compound it with an injustice.

Lord Lyell of Markyate: My Lords, I am extremely grateful to the Minister. If the House were persuaded by the arguments that a prison sentence was inappropriate for careless driving, is it within its procedural power on the ping pong to come back with a clause which would reflect that? I believe it is.

Lord Davies of Oldham: My Lords, I beg to move that the House do agree with the Commons in their Amendments Nos. 7 to 10.
	Section 89 of the Road Traffic Act (tests of competence to drive) enables the Secretary of State to make regulations about tests of competence to drive. Section 89(3)(b) provides for those regulations to cover the qualifications, selection and appointment of persons to conduct driving tests. That provision is used to enable employees of certain organisations, such as the MoD, police, fire brigades and some bus companies to conduct driving tests on behalf of the Secretary of State as delegated examiners.
	In the modern environment we need flexibility in terms of the training that a person may need to undertake in order to become, and remain, approved as a delegated examiner. For example, as delegated examiners need to maintain and develop their expertise following their initial appointment, we would wish to discuss with them the introduction of continuing professional development.
	Amendment No. 7 amends Section 89(3)(b) so as to make the scope of the regulation-making powers more explicit. It also permits the Secretary of State to charge reasonable fees in connection with the initial and continuing approval of delegated examiners. This links with Clause 36(5) of the Bill. The combined effect of these two provisions is to create an environment in which we can move away from the existing arrangements for recovering the costs incurred by the Driving Standards Agency (DSA) in the appointment, and subsequent quality assurance, of delegated examiners. The DSA currently charges delegated examiners for the supply of the test result certificates they issue for the driving tests they conduct. These charges are intended to cover the costs the DSA incurs in respect of delegated examiners. This is an unsophisticated and blunt recovery mechanism as the agency's costs are not directly related to the number of tests conducted by an individual examiner. It is, therefore, inequitable and at odds with the "user pays" principle.
	Amendment No. 8 is a consequential amendment arising from Amendment No. 7.
	Moved, That the House do agree with the Commons in their Amendments Nos. 7 to 10.—(Lord Davies of Oldham.)

Lord Davies of Oldham: My Lords, I beg to move that the House do agree with the Commons in their Amendments Nos. 11 and 12.
	These are the principal amendments dealing with taxis and private hire vehicles, sometimes known as minicabs. They introduce two new clauses. The remaining amendments in this group are consequential to the two new clauses. They both have the same objective—to make travel safer for people who use these modes of transport. Against the background of the Bichard report and the legislation that we have brought forward in that regard, we have looked carefully at whether we should use the opportunity presented by the Road Safety Bill to deal with any urgent safety concerns in taxi and PHV legislation. The result is these new clauses to deal with two worrying aspects of the legislation that we identified.
	Amendment No. 11 addresses our concern about a taxi or PHV driver's right to continue working while appealing against a decision to suspend or revoke his licence, even if he is considered to present an immediate threat to public safety. The clause provides local licensing authorities in England and Wales, outside London, with a new power, which will enable them to suspend or revoke a taxi or PHV driver's licence with immediate effect on safety grounds. This power has already been available to the licensing authority in London—Transport for London—for a number of years.
	A driver's automatic right to continue working pending appeal has been a source of justified concern to many taxi and PHV licensing authorities. They want to use their licensing powers to ensure that passengers are safe using local taxi and PHV services. They play a tremendously important role in protecting residents and visitors who make use of taxis and PHVs in their areas. The amendment will equip them to do so even more thoroughly in circumstances, for example, where a driver has committed a serious offence or is suffering from a medical condition that makes it unsafe for them to continue working.
	Amendment No. 12 addresses our concern about what is commonly known as the "contract exemption"; the provision that exempts drivers, vehicles and operators outside London from licensing if the vehicles are hired only under contracts lasting seven days or more. During the earlier passage of the Bill, concerns were raised about what is now Clause 47. The House will be aware that this clause tightens the definition of a private hire vehicle in London and will bring vehicles dedicated to contract work within the London PHV licensing regime. One of the points made in the earlier discussion was that the clause would be inconsistent with the retention of the contract exemption outside London. Ministers promised to consider this matter. Having done so, the conclusion that we came to is that public safety, and indeed consistency, requires that we ensure that contract private hire work is licensed both in London and elsewhere. That is why we have brought forward the new clause in Amendment No. 12.
	There are no compelling reasons why private hire services provided under long-term contracts should be outside the arrangements for ensuring public safety that are considered to be essential for other private hire work. The need to ensure public safety remains the same regardless of whether the hiring is a one-off or part of a long-term contract. For a passenger possibly at risk, the method of hiring is scarcely relevant; what is important is that there is no doubt that all the necessary checks and procedures have been comprehensively and effectively carried out. There are good grounds for removing the contract exemption to ensure a level playing field in the industry; unlicensed contractors have a commercial advantage over their licensed counterparts, which cannot be justified.
	Both these new clauses are strongly supported by those who have responsibility for taxi and PHV licensing, and they have been welcomed by many in the industry. I commend them to the House as being necessary to safeguard the public, and I urge the House to agree to these amendments.
	Moved, That the House do agree with the Commons in their Amendments Nos. 11 and 12.—(Lord Davies of Oldham.)

Lord Davies of Oldham: My Lords, I beg to move that the House do agree with the Commons in their Amendments Nos. 13 to 15. In doing so, I ask the noble Lord, Lord Bradshaw, not to move his Amendments Nos. 16A and 17A, but I shall of course seek to reply to any points that he makes.
	We think that we have now produced a position with regard to the safety of level crossings that should commend itself to the House. The first new clause seeks to improve the safety of level crossings by making clear that a level crossing order can impose obligations on traffic authorities as well as on the level crossing operator and so better provide for road traffic measures to control the behaviour of motorists. The other new clause is a technical amendment which provides for the making of level crossing orders to be delegated to the rail safety regulator rather than be made directly by the Secretary of State, and prospectively validates orders made by the Health and Safety Executive on his behalf. Amendments Nos. 23, 24 and 32 are consequential on those two new clauses. The remaining amendments remove clauses which the Government do not think are necessary and which were not supported in the other place.
	When the Bill was introduced into this House, much concern was expressed about safety at level crossings. Now that other safety concerns have been tackled, level crossings represent the greatest risk to safety on the railway. In the main, however, the risk arises not from the actions of rail users but from those of pedestrians and motorists who misuse crossings in a reckless way. A number of amendments were tabled by noble Lords to tackle the problem. The Government position was that those amendments were either defectively drafted or that we were not convinced of the need for further primary legislation.
	We did, however, undertake to think about the issue and I am pleased to report to the House that in the other place an amendment was introduced which seeks to tackle the problem of misbehaving motorists by clarifying that a level crossing order may put obligations on road traffic authorities as well as on the level crossing operator. The amendment was introduced after agreement with Network Rail on the wording.
	Level crossing orders set out the protective measures to be provided at a level crossing. "Protective measures" means the types of signs, barriers, lights and so on needed to ensure the crossing is safe both for road and rail users. The general process has been that, after consultation with the local authority, the level crossing operator applies to the Secretary of State for an order setting out the necessary measures. The proposals are considered by Her Majesty's Railway Inspectorate and the order made by the inspectorate on behalf of the Secretary of State.
	The protective measures have traditionally been rail measures but the amendment makes clear that road traffic measures can also be considered. This means that there will need to be discussions between local traffic authorities and the crossing operator, usually Network Rail, on a package of measures. These could include rumble strips to slow traffic on its approach to the crossing, additional signage, cameras and central barriers to stop motorists from attempting to zig-zag around half-barriers. Network Rail has agreed to fund these measures, so there will be no additional call on the resources of local authorities.
	The Government have looked at the other amendments introduced into this House but are not persuaded of the case for special offences in respect of breaching red lights at railway crossings and bridge strikes. Regarding red lights, there are many instances where a violation can have catastrophic consequences for motorists and pedestrians just as much as where collisions occur on railway crossings. As the roads Minister made clear in the other place, where the violation is blatant and dangerous, the driving can and should be prosecuted as such with a significantly higher penalty, including custody, than that which applies to breach of a red light. If there is real evidence of a problem the Government would be prepared to consider using subordinate powers under Clauses 3 and 4 of the Bill, subject to the agreement of Parliament, to set a higher fixed penalty and higher penalty points tariff for breaches of red lights where they occur at railway crossings.
	Bridge strikes greatly interest several noble Lords. I believe the current offence of careless and inconsiderate driving, with a maximum fine, subject to parliamentary approval for Clause 22 of this Bill, of £5,000, is sufficient. In extreme cases, where danger is caused to other road users, it may be appropriate to prosecute for dangerous driving with the possible attendant penalties.
	The possibility of a custodial penalty is a significant elevation of the gravity with which society views an act of irresponsible driving. It is a very tricky path when we start to designate very specific actions in their own right as being as serious as those for which custodial penalties presently exist. I have heard it argued for when people use mobile phone when driving, for example. But how do we balance all these different circumstances? My response is to say that it should remain a matter for those who charge and those who sentence. Sentencing guidelines indicate that use of a mobile phone might be considered an aggravating factor when sentencing for dangerous driving. I think it would be appropriate for the Sentencing Advisory Panel to take a look at the level crossing and bridge strike situations. The Government are willing to make that request and I hope the noble Lord will recognise that that is the basis on which constructive action can be taken, which is the burden of his amendments.
	The other new clause is not concerned with the content of level crossing orders but is a technical amendment about who has the power to make level crossing orders. With the transfer of the HMRI from the Health & Safety Executive to the Office of Rail Regulation earlier this year, we had intended that the rail inspectorate would continue to make level crossing orders. But doubt was cast on whether the wording of the Railways Act 2005 would allow this. In turn, doubt was cast on whether the delegation to the Health & Safety Executive in 1990 was sufficiently robust. The Railways Act 2005 and the Health & Safety at Work etc Act 1974 (under which the 1990 delegation was made) permit the delegation of administrative functions but not legislative functions. We have concluded that the making of level crossing orders is a legislative function.
	We are, therefore, seeking to put beyond doubt that the making of level crossing orders can be delegated and to make clear that orders made by the rail inspectorate inspectors when they were in HSE are valid. If approved, the amendment would confirm the legal position as that which absolutely everyone thought it always was, and which has worked well in terms of level crossing safety.
	Moved, That the House do agree with the Commons in their Amendment Nos. 13 to 15.—(Lord Davies of Oldham.)

Lord Bradshaw: My Lords, I wish to speak to Amendments Nos. 16A and 17A as amendments to the Motion that this House do agree with Commons in their Amendments Nos. 16 and 17, and to leave out "agree" and insert "disagree".
	I am grateful to the Minister for what he has said about level crossings. I still have to point out that they now represent 42 per cent of the accident risk faced by train operators. Many causes of train accidents have been eliminated, but this one has not, and it is getting worse. There were 229 near misses last year, 16 collisions at level crossings and 120,000 minutes of delay were caused. At bridges there was even more delay: 340,000 minutes. There were 2,000 incidents which cost £10 million to deal with and the figure is going up.
	The only point between me and the Minister in examining this matter is the level of penalties that are applicable to people who breach level crossings. He has said that people who bash into bridges should be charged with dangerous driving if it can be shown that they have driven without regard to the size of their lorry into a bridge which is clearly marked. Can he give me an assurance that that would be classed as dangerous driving? In that case the penalties would be worth inflicting because they would have some effect.
	As regards level crossings, I am sure that the Minister has seen the films that I and the noble Lord, Lord Hanningfield, have seen. The behaviour of some motorists—it is a small minority—is criminally insane at level crossings. There is a strong case for giving serious thought to lifting the penalties under, I believe, the Road Traffic Act 1991. They are level 3, which means that a maximum fine of £1,000 can be imposed for such acts, unless they are elevated to dangerous driving. I am well aware that in that case other penalties would accrue. I would like to hear what the Minister has to say before deciding what we should do.

Lord Berkeley: My Lords, I, too, thank my noble friend for the Commons amendments on level crossings. We have had long discussions about them and I think that they are really good. I am pleased about the way in which Network Rail has accepted them and I am sure that it will be a good step forward.
	I worry still about these penalties—as the noble Lord, Lord Bradshaw, said, there have been 2,000 incidents of bridge-bashing. People think that you just get delayed in your train for half an hour until the engineer comes, looks at it and says it is all right. However, let us take the scenario of a lorry hitting a steel-deck bridge and moving it six inches sideways towards the track just before a high-speed train goes over it. We are talking about hundreds of potential deaths—especially if a train is going in the other direction. It may not happen often—I hope it never happens—but there is a need for a deterrent.
	We are not talking about careful driving here; we are talking about intent. Not to check the height of your lorry or to wriggle through half barriers to save a few minutes is done with intent and sometimes it will go wrong. In these circumstances, custodial sentences should certainly be possible. The deterrent does not exist at present, as the evidence of the number of incidents given by the noble Lord, Lord Bradshaw, surely shows. I hope that my noble friend can put my mind at rest and agree that the deterrent must dramatically increase before we have a serious accident.

Moved accordingly, and, on Question, Motion agreed to.
	27: Insert the following new Schedule—
	"PROHIBITION ON DRIVING: IMMOBILISATION, REMOVAL AND DISPOSAL OF VEHICLES
	Cases to which regulations may apply
	1 The Secretary of State may make regulations with respect to any case where, on or after such date as may be prescribed, the driving of a vehicle has been prohibited under—
	(a) section 99A(1) of the Transport Act 1968 (c. 73) (powers to prohibit driving of vehicles in connection with contravention of provisions about drivers' hours), (b) section 1 of the Road Traffic (Foreign Vehicles) Act 1972 (c. 27) (powers to prohibit driving of foreign goods vehicles and foreign public service vehicles), (c) section 69 or 70 of the Road Traffic Act 1988 (c. 52) (powers to prohibit driving of unfit or overloaded vehicles), or (d) section 90D of the Road Traffic Offenders Act 1988 (c. 53) (power to prohibit driving of vehicle on failure to make payment in compliance with financial penalty deposit requirement). Immobilisation
	(1) The regulations may provide that an authorised person or a person acting under his direction may—
	(a) fix an immobilisation device to the vehicle, and (b) move the vehicle, or direct it to be moved, for the purpose of enabling an immobilisation device to be fitted it.
	(2) The regulations may provide that on any occasion when an immobilisation device is fixed to a vehicle in accordance with the regulations the person fixing the device must also fix to the vehicle a notice—
	(a) indicating that the device has been fixed to the vehicle and warning that no attempt should be made to drive it or otherwise put it in motion until it has been released from the device, (b) specifying the steps to be taken to secure its release, and (c) giving such other information as may be prescribed.
	(3) The regulations may provide that a vehicle to which an immobilisation device has been fixed in accordance with the regulations—
	(a) may only be released from the device by or under the direction of an authorised person, but (b) subject to that, must be released from the device if the first and second requirements specified below are met.
	(4) The first requirement is that such charge in respect of the release as may be prescribed is paid in any manner specified in the immobilisation notice.
	(5) The second requirement is that, in accordance with instructions specified in the immobilisation notice, there is produced such evidence as may be prescribed establishing that the prohibition has been removed.
	(6) The regulations may provide that they do not apply in relation to a vehicle if—
	(a) a current disabled person's badge is displayed on the vehicle, or (b) such other conditions as may be prescribed are fulfilled, and "disabled person's badge" means a badge issued, or having effect as if issued, under any regulations for the time being in force under section 21 of the Chronically Sick and Disabled Persons Act 1970 (c. 44).
	(7) The regulations may provide that an immobilisation notice is not to be removed or interfered with except by or on the authority of a person falling within a prescribed description.
	Offences connected with immobilisation etc.
	3 (1) The regulations may provide that a person who fails to comply within a reasonable time with a direction under provision made under paragraph 2(1)(b) is guilty of an offence and liable on summary conviction to a fine not exceeding level 5 on the standard scale.
	(2) The regulations may provide that a person contravening provision made under paragraph 2(7) is guilty of an offence and liable on summary conviction to a fine not exceeding level 2 on the standard scale.
	(3) The regulations may provide that a person who, without being authorised to do so in accordance with provision made under paragraph 2, removes or attempts to remove an immobilisation device fixed to a vehicle in accordance with the regulations is guilty of an offence and liable on summary conviction to a fine not exceeding level 3 on the standard scale.
	(4) The regulations may provide that where they would otherwise have applied in relation to a vehicle but for provision made under paragraph 2(6)(a) and the vehicle was not, at the time at which they would otherwise have applied, being used—
	(a) in accordance with regulations under section 21 of the Chronically Sick and Disabled Persons Act 1970 (c. 44), and (b) in circumstances falling within section 117(1)(b) of the Road Traffic Regulation Act 1984 (c. 27) (use where a disabled person's concession would be available), the person in charge of the vehicle at that time is guilty of an offence and liable on summary conviction to a fine not exceeding level 3 on the standard scale.
	(5) The regulations may provide that where—
	(a) a person makes a declaration with a view to securing the release of a vehicle from an immobilisation device purported to have been fixed in accordance with the regulations, (b) the declaration is that the prohibition has been removed, and (c) the declaration is to the person's knowledge either false or in any material respect misleading, he is guilty of an offence.
	(6) The regulations may provide that a person guilty of an offence for which provision is made under sub-paragraph (5) is liable—
	(a) on summary conviction, to a fine not exceeding the statutory maximum, or (b) on conviction on indictment, to imprisonment for a term not exceeding two years, or to a fine, or both. Removal and disposal of vehicles
	4 (1) The regulations may provide that where such conditions as may be prescribed are fulfilled an authorised person, or a person acting under his direction, may remove the vehicle or direct it to be removed.
	(2) The regulations may provide that where such conditions as may be prescribed are fulfilled an authorised person, or a person acting under his direction, may deliver the vehicle, or direct it to be delivered, into the custody of a person—
	(a) who is identified in accordance with prescribed rules, and (b) who agrees to accept delivery in accordance with arrangements agreed between that person and the Secretary of State,
	and the arrangements may include provision as to the payment of a sum to the person into whose custody the vehicle is delivered.
	(3) The regulations may make provision for such persons as may be prescribed to be informed that a vehicle has been removed and delivered into a person's custody and may, in particular, include provision requiring—
	(a) the publication by an authorised person of such notices as may be prescribed, and (b) the giving of notice by an authorised person to such persons as may be prescribed.
	(4) The regulations may provide that the person into whose custody the vehicle is delivered may dispose of it, and may in particular make provision as to—
	(a) the time at which the vehicle may be disposed of, and (b) the manner in which it may be disposed of.
	(5) The regulations may make provision allowing a person to take possession of the vehicle if—
	(a) he claims it before it is disposed of, and (b) any prescribed conditions are fulfilled.
	(6) The regulations may provide for a sum of an amount arrived at under prescribed rules to be paid to a person if—
	(a) he claims after the vehicle's disposal to be or to have been its owner or to have been the person in charge of the vehicle when it was removed, (b) the claim is made within a prescribed time of the disposal, and (c) any other prescribed conditions are fulfilled.
	(7) The regulations may provide that (whether or not a claim is made under provision made under sub-paragraph (5) or (6))—
	(a) the Secretary of State, or (b) a person into whose custody the vehicle is delivered under the regulations, may recover from the vehicle's owner or the person in charge of the vehicle such charges as may be prescribed in respect of all or any of its release, removal, custody and disposal.
	(8) In sub-paragraph (7) "person in charge" and "owner", in relation to a vehicle, means the person who was in charge of the vehicle or was the vehicle's owner when it was removed.
	(9) The conditions prescribed under sub-paragraph (5) may include conditions as to—
	(a) satisfying the person with custody that the claimant is the vehicle's owner or was the person in charge of the vehicle when it was removed, (b) the payment of prescribed charges in respect of the vehicle's release, removal and custody, and (c) the production of such evidence as may be prescribed establishing that the prohibition has been removed.
	(10) The regulations may in particular include provision for purposes corresponding to those of sections 101 and 102 of the Road Traffic Regulation Act 1984 (c. 27) (disposal and charges) subject to such additions, omissions or other modifications as the Secretary of State thinks fit.
	Offences as to securing possession of vehicles
	5 (1) The regulations may provide that a person who fails to comply within a reasonable time with a direction under provision made under subparagraph (1) or (2) of paragraph 4 is guilty of an offence and liable on summary conviction to a fine not exceeding level 5 on the standard scale.
	(2) The regulations may provide that where—
	(a) a person makes a declaration with a view to securing possession of a vehicle purported to have been delivered into the custody of a person in accordance with provision made under paragraph 4, (b) the declaration is that the prohibition has been removed, and (c) the declaration is to the person's knowledge either false or in any material respect misleading,
	he is guilty of an offence.
	(3) The regulations may provide that a person guilty of an offence for which provision is made under sub-paragraph (2) is liable—
	(a) on summary conviction, to a fine not exceeding the statutory maximum, or (b) on conviction on indictment, to imprisonment for a term not exceeding two years, or to a fine, or both. Disputes
	6 The regulations may make provision about the proceedings to be followed where a dispute occurs as a result of the regulations, and may in particular make provision—
	(a) for an application to be made to a magistrates' court or (in Scotland) to the sheriff, or (b) for a court to order a sum to be paid by the Secretary of State. Authorised persons
	7 As regards anything falling to be done under the regulations (such as receiving payment of a charge or other sum) the regulations may provide that it may be done—
	(a) by an authorised person, or (b) by an authorised person or a person acting under his direction. Application of Road Traffic Offenders Act 1988 (c. 53)
	8 The regulations may make provision for the application of any or all of sections 1, 6, 11 and 12(1) of the Road Traffic Offenders Act 1988 (c. 53) to an offence for which provision is made by the regulations.
	Interpretation
	9 References in this Schedule to a vehicle include references to any trailer drawn by the vehicle.
	10 (1) This paragraph makes provision about the meaning of "authorised person" for the purposes of this Schedule.
	(2) Where the driving of the vehicle has been prohibited under section 99A(1) of the Transport Act 1968 (c. 73), section 1(2) of the Road Traffic (Foreign Vehicles) Act 1972 (c. 27) or section 69 of the Road Traffic Act 1988 (c. 52), "authorised person" means—
	(a) an examiner appointed by the Secretary of State under section 66A of the Road Traffic Act 1988 (c. 52), or (b) a constable authorised by or on behalf of a chief officer of police to act for the purposes of the provision under which the driving of the vehicle has been prohibited.
	(3) Where the driving of the vehicle has been prohibited under section 1(3) of the Road Traffic (Foreign Vehicles) Act 1972 (c. 27), "authorised person" means a person authorised to exercise the powers of section 78 of the Road Traffic Act 1988 (c. 52) with respect to the weighing of motor vehicles and trailers.
	(4) Where the driving of the vehicle has been prohibited under section 70 of the Road Traffic Act 1988 (c. 52), "authorised person" means a person mentioned in sub-paragraph (2) or a person authorised with the consent of the Secretary of State to act for the purposes of subsection (1) of that section by—
	(a) a highway authority other than the Secretary of State, or (b) a local roads authority in Scotland.
	(5) Where the driving of the vehicle has been prohibited under section 90D of the Road Traffic Offenders Act 1988 (c. 53), "authorised person" means—
	(a) an examiner appointed by the Secretary of State under section 66A of the Road Traffic Act 1988 (c. 52), or (b) a constable.
	11 In this Schedule—
	(a) references to an immobilisation device are to a device or appliance which is an immobilisation device for the purposes of section 104 of the Road Traffic Regulation Act 1984 (c. 27) (immobilisation of vehicles illegally parked), and (b) references to an immobilisation notice are to a notice fixed to a vehicle in accordance with the regulations.
	12 In this Schedule "prescribed" means prescribed by the regulations.
	13 (1) The regulations may make provision as to the meaning for the purposes of the regulations of "owner" as regards a vehicle.
	(2) In particular, the regulations may provide that for the purposes of the regulations the owner of a vehicle is taken to be the person in whose name it is then registered under the Vehicle Excise and Registration Act 1994 (c. 22).
	Supplementary provisions about regulations
	14 (1) The power to make regulations under this Schedule is exercisable by statutory instrument.
	(2) A statutory instrument containing regulations under this Schedule is subject to annulment in pursuance of a resolution of either House of Parliament."
	28: Page 106, line 27, after "conducted" insert ", conditions which must be satisfied during the currency of an appointment, the charging of reasonable fees in respect of applications for appointment or appointments or in connection with any examination or assessment which may be required before appointment or during the currency of any appointment"
	29: Page 113, line 8, after "evidencing" insert "the passing of an examination (or part of an examination) required by regulations under section 132 of this Act or"
	30: Page 113, line 15, after "evidencing" insert "the passing of an examination (or part of an examination) required by regulations under section 132 of this Act or"
	31: Page 126, line 16, at end insert—
	"(15A) HACKNEY CARRIAGES AND PRIVATE HIRE VEHICLES
	
		
			 Short title and chapter Extent of repeal 
			 Local Government (Miscellaneous Provisions) Act 1976 (c. 57)Private Hire Vehicles (London) Act 1998 (c. 34) Section 75(1)(b).In section 1(1)(a), in the definition of "private hire vehicle", the words "to the public"." 
		
	
	32: Page 126, line 16, at end insert—
	"(15B) SAFETY ARRANGEMENTS AT LEVEL CROSSINGS
	
		
			 Short title and chapter Extent of repeal 
			 Level Crossings Act 1983 (c. 16) In section 1—(a) in subsection (3)(b), the words "barriers or other", and(b) in subsection (11), the definition of "local authority"." 
		
	
	33: Page 126, leave out lines 26 to 29
	34: Line 2, leave out "trunk road picnic areas and private hire vehicles" and insert "hackney carriages and private hire vehicles, and trunk road picnic areas"

Lord Adonis: My Lords, on the latter point, it was precisely because of those objections that we have now included prison officers and probation officers.
	In her remarks, the noble Baroness asked a large number of questions. I may need to respond to some of them in writing because they are technical in nature, but I hope I can deal with some now.
	On the vexed issue, which we accept is difficult, of family relationships and where they end and care beyond the family begins, we are clear in respect of Amendment No. 145 that activities carried on in the course of a family relationship or a personal relationship, where there is no commercial consideration, are outside the scope of the Bill. As I have said before, we do not want the Bill to intrude into private family life. Amendment No. 145 gives the Secretary of State a power to prescribe circumstances in which an activity may be said to be carried out either within or outside the definition of a family relationship or a personal relationship in Clause 43. We intend to use this to provide that in certain, clearly specified situations activities involving individuals that would normally be considered a private, family or personal relationship as defined in Clause 43 will not be treated as such.
	This ensures that we have some flexibility to respond to cases where activity should be within the scope of the Bill, even where it is carried out by a family member or a friend. Examples would include those who act on behalf of those who lack capacity as a deputy, an attorney or who are appointed by DWP to look after someone's benefit or their pension. These kinds of activities are frequently undertaken by those who are close to the child or vulnerable adult concerned, but they are also activities of a public nature involving the relative or friend concerned in duties that have legal consequences and obligations. In these examples the activities concerned are not entirely private, even when carried out by relatives or friends.
	We had many discussions in our earlier debates about protecting those who lack capacity. I believe noble Lords will agree that they do not want a barred person to act in a capacity such as I have indicated above. We will use the regulation-making power to ensure that family members or friends acting as deputies, attorneys or who are appointed by DWP are within the scope of the scheme.
	As to the issue the noble Baroness raised on pregnant women, it is precisely to meet that point that the amendments limited coverage in relation to pregnant women from the original wider definition. It is now limited to those, as she said, in receipt of community care services. All other persons receiving community care services are vulnerable adults and we believe it would not be right to exclude expectant and nursing mothers from this.
	I am informed that the officials of the National Assembly for Wales have consented to Amendment No. 140, to which the noble Baroness, Lady Walmsley, referred. The amendment removes immunity from prosecution for the staff of the National Assembly, which means that a person will commit an offence if he engages in regulated activity for the National Assembly while not subject to monitoring or while barred. A member of staff of the National Assembly may be prosecuted for failing to make an appropriate check on a person when that failure is a result of his act or reckless default. That position is in line with that for Crown employees generally and will help the National Assembly to ensure that the duties that the Bill places on it are correctly carried out by its staff.
	The noble Baroness raised the question of overseas staff. We expect schools to be vigilant in carrying out checks in respect of overseas staff. Ofsted makes it clear that local authorities check the suitability of staff from overseas and take all available precautions to ensure that they are safe to work with children. We advise that all checks are carried out and that employers take extra care with other checks on overseas candidates, and seek information about the person's criminal history from their country of origin wherever possible. As I said when we debated this issue before, the CRB provides advice to employers about countries from which it is possible to obtain such information and how to obtain it in a readily available and standardised format. We are amending regulations to make CRB checks mandatory for all overseas staff, including those who have never lived in the United Kingdom.
	On the issue of communicating to private foster carers, as my honourable friend Parmjit Dhanda said in another place, we recognise the need for a widespread and ongoing communications campaign. In relation to the requirement to check and be subject to monitoring, we recognise the need to communicate to language schools and other organisations that set up and have control over placements for children. In addition, there are also requirements in the Children (Private Arrangements for Fostering) Regulations 2005 to notify a local authority of a proposal to foster a child privately. This applies to all private fostering arrangements as defined in the Children Act. At the point of notification, local authorities should tell the foster carers about the circumstances in which the new monitoring and status provisions apply. We will issue guidance in relation to this. Authorities are required to promote awareness within their area of the need to notify private fostering arrangements to the relevant local authority.
	In respect of Amendments Nos. 218 and 235, I am told that the Delegated Powers and Regulatory Reform Committee was satisfied that the order-making powers in these amendments were subject to negative resolution procedure. I hope that that deals with most of the points, but I shall deal with the others in writing.

Lord Adonis: My Lords, I beg to move that the House do agree with the Commons in their Amendments Nos. 4 to 6. I will also speak to the other amendments in this group.
	These amendments relate to offences in the Bill. In the first place, they seek to ensure that offences are clear and apply to the right people. To that end, they clarify who is defined as a regulated activity provider. Amendments Nos. 4 to 6 ensure that responsibility for making checks before individuals engage in regulated activity will now rest with the person or body ultimately responsible for that activity. We have removed Clause 17, which provided for offences to be committed by employees, and replaced it with a new clause, inserted by Amendments Nos. 72 and 73, providing that those who are acting or appear to be acting on behalf a regulated activity provider or personnel supplier will commit an offence if they are at fault. We recognise that while the regulated activity provider has overall responsibility for making checks and employing appropriate staff, the offence may be the fault of an employee or someone else acting on behalf of the regulated activity provider, and they should also be responsible in these situations.
	For example, an employee of a sports centre who fails to check on an individual being employed to teach children's tennis lessons, because they did not know it was a requirement to check, would not commit an offence. The owner of the sports centre, or if it is a company the sports centre itself, would have committed the offence. However, if the centre manager asked the employee in question to carry out the check and they deliberately did not do so, the individual would commit an offence under the Bill.
	We have also made important amendments to the requirement to check. Clause 15, as it left this House, provided an easement from the requirement to check where an individual works in more than one NHS position at the same time; for example, a permanent NHS employee who also undertakes temporary NHS work on their day off. We now agree that relevant independent healthcare providers providing NHS services under contract with the NHS should also benefit from this provision, hence Amendments Nos. 65 to 67.
	The new clause inserted by Amendment No. 60 gives the Secretary of State the power to place a requirement on holders of certain positions to be subject to monitoring, and to place requirements on an appropriate person to check. We plan to consider with the Charity Commission whether it would be appropriate to require checks, and in what circumstances. There might, for example, be a requirement on the chair of the trustees, or a person nominated by the trustees and checked by the Charity Commission.
	Amendments Nos. 43, 44, 45, 48, 59, 139 and 237 clarify how employers can comply with their duty to check that an individual is subject to monitoring and therefore not barred. Enhanced disclosures provide more information than an online check, which can help employers assess whether an individual is suitable for a particular position. Enhanced disclosures are currently required in sectors involving very close contact with children, such as schools and children's homes. These amendments provide the power to require employers in certain sectors to obtain an enhanced disclosure prior to a person beginning work, or to require the employer to take steps to obtain a disclosure before work commences and at the same time require an online check on an individual's status. That will allow supervised employment to begin while waiting for an enhanced disclosure.
	The new schedule inserted by Amendment No. 237 also explains what information a regulated activity provider must obtain from a personnel supplier or a contractor. For example, a girls' dance school that hires a teacher from an agency can rely on written confirmation that the agency has no reason to believe that the individual is not subject to monitoring, and has registered to be told if the individual ceases to be monitored. However, if the employer was required to get an enhanced disclosure through regulations under the Bill, they would be required to obtain a copy of the enhanced disclosure from the agency.
	As the House is aware, the Select Committee on Delegated Powers and Regulatory Reform met yesterday to consider the amendments made to the Bill in the Commons. Amendment No. 237A reflects the advice of the committee on the appropriate parliamentary procedure for orders made under paragraph 14 of the new schedule inserted by Amendment No. 237. That paragraph gives the Secretary of State the power to amend the new schedule to alter what appropriate verification is. That power is needed to give the scheme the operational flexibility it needs in the future. The committee has advised that such a power to amend primary legislation should be subject to the affirmative, rather than the negative, procedure. The Government accept that view, and this amendment implements the recommendation.
	Amendments in this group also strengthen the provisions within the Bill in relation to personnel suppliers, such as employment agencies and businesses. Amendment No. 238 ensures that an employment business will commit an offence if it supplies an individual to engage in regulated activity where it has failed to ensure that the individual is subject to monitoring. Amendments Nos. 26, 27, 35, 36 and 37 ensure that a personnel supplier will commit an offence if it knowingly supplies an individual who is barred, or not subject to monitoring, to engage in regulated activity for any person, not just for a regulated activity provider, even where the activity takes place only occasionally.
	With regard to controlled activity, Amendments Nos. 90, 89 and 152 provide the power to place a series of mandatory requirements on employers through regulations. We will use these to require employers to make checks and put in place the necessary safeguards when employing a barred person.
	Amendments Nos. 19, 38 and 50 ensure that an individual under the age of 16 who is engaging in regulated activity is not required to be subject to monitoring. In addition, those permitting or supplying the individual to engage in regulated activity commit no offence by doing so and are not required to check whether the individual is monitored. This will ensure that 15 year-olds who go on two weeks' work experience at a primary school are not required to go through the scheme and the school is not required to make a check in such cases, which would be ridiculous.
	These amendments strengthen and clarify the way in which the scheme will be enforced and I commend them to the House.
	Moved, That the House do agree with the Commons in their Amendments Nos. 4 to 6.—(Lord Adonis.)

Lord Adonis: My Lords, I beg to move that the House do agree with the Commons in their Amendments Nos. 7 to 14.—(Lord Adonis.)
	Moved, That the House do agree with the Commons in their Amendments Nos. 7 to 14.—(Lord Adonis.)

On Question, Motion agreed to.

Lord Adonis: My Lords, I beg to move that the House do agree with the Commons in their Amendments Nos. 15 and 16. As noble Lords will recall, there was no part of the Bill that was subject to more difficulty than what has come to be known as the "frequency test".
	For the application of the bar, the concern previously put to us was that even very brief or occasional contact with a barred person constitutes a risk too far, not least because of the difficulty of defining "very brief" or "occasional". We listened carefully to those views, and Amendments Nos. 16 and 31 reflect the revised view, supported by all parties, that we should prevent a person on a barred list from engaging in regulated activity and make it a criminal offence for an employer to engage them even where the activity is brief or occasional. We do recognise, however, that in an emergency it may be necessary for a barred individual to engage in a specific regulated activity and that to criminalise them for doing so would be wrong. Amendments Nos. 15 and 30 create a defence where a barred individual has to engage in regulated activity to prevent harm and where there is no one else around that could engage in that specific activity. That is intended to cover only a very limited range of situations where, for example, a doctor barred from working with children has to administer first aid to a child who has had an accident in the street.
	Amendments Nos. 203 and 224 are designed to ensure, for example, that a barred parent would be able to enter a school to attend their child's parents' evening, or that an individual on the adults' barred list would be able to visit their sick mother in a care home. However, a barred person who carried out an activity in a school, for example, with the opportunity for contact with vulnerable groups, would be prevented from doing so where the activity involved work, paid or unpaid, in connection with the purposes of the school. While a barred person will now be barred from regulated activity of any duration, the requirements to check and to be subject to monitoring should still apply only when the amount of contact is above a certain threshold.
	Amendments Nos. 200, 202, 219, 223 and 236 set out the circumstances in which the requirements to check and to be subject to monitoring kick in. They ensure that activities that take place overnight will be regulated activity. They also define contact taking place on three or more days in a 30-day period as regulated activity. These circumstances are referred to in Amendment No. 236 as the "period condition". Similar revisions are made to the definition of controlled activity by Amendments Nos. 74, 75 and 82. That means that employers will be required to check, and individuals will need to be subject to monitoring, if they are working in, for example, a conference crèche for children that lasts for three days or longer. Similarly, a volunteer helping out at a school campsite would need to be subject to monitoring if they were looking after the children overnight. It will be optional for employers to check individuals engaged in regulated activity lasting for less time than those circumstances specified in the period condition.
	Beyond those situations, the requirements to check and to be subject to monitoring will still apply when an activity is carried out "frequently". Frequently will take its normal meaning and, as has been said previously in this House, guidance will set out the Secretary of State's broad interpretation that the term will cover activities that are carried out once a month or more often. However, to provide a measure of protection for employers and individuals who have followed this guidance, Amendments Nos. 22, 42 and 54 require the court to take into account the extent to which employers and individuals have followed the Secretary of State's guidance when imposing penalties for a failure to comply with the regulated activity requirements. The amendments meet concerns raised in this House about the definition of "frequently" and its practical effects. I believe that they will be welcomed.
	Moved, That this House do agree with the Commons in their Amendments Nos. 15 and 16.—(Lord Adonis.)

Lord Adonis: My Lords, I beg to move that the House do agree with the Commons in their Amendments Nos. 143 and 144. I will speak also to the others in the group.
	These amendments relate to the operation of vetting and barring in the devolved Administrations. They will enable the Government to deliver the commitments that they have made to ensure that the vetting and barring scheme operates successfully across the United Kingdom. These commitments include that a person who appears on a barred list kept by the IBB or by Scottish Ministers will be barred from working with children or vulnerable adults across the entire UK, and that the relevant authorities across the UK will share information so that information that could lead to barring can be considered by the IBB or Scottish Ministers, as appropriate, regardless of where in the UK the information first came to light.
	Amendment No. 143 enables provision to be made in future to take account of forthcoming Scottish and Northern Ireland legislation. Scotland is making provision for its own vetting and barring scheme. Northern Ireland will make its own provisions, which will work in parallel with those in England and Wales and allow the IBB to make barring decisions about individuals living and working in Northern Ireland. Both the Scottish and Northern Ireland legislation will be finalised after the Safeguarding Vulnerable Groups Bill has completed it passage. Secondary legislation made under this new clause will be subject to the affirmative resolution procedure if it amends provisions of the Safeguarding Vulnerable Groups Bill or confers a power to make secondary legislation.
	Amendment No. 153A responds to a recommendation by the Delegated Powers Committee. It will ensure that the order-making power in Amendment No. 143 is subject to affirmative resolution, whether it makes amendment to the Safeguarding Vulnerable Groups Bill or to any other Act of Parliament. We are grateful for the committee's thorough scrutiny of the Bill, and are happy to accept its recommendation in this regard.
	Amendments Nos. 179 and 188 provide that the IBB must not include a person on a barred list where Scottish Ministers have already made a decision whether to include the person on their list and the IBB has no new evidence. This will prevent a person from being considered for more than one jurisdiction's list on the basis of the same information and therefore needing to go through different representation and appeals procedures in each jurisdiction. The intention is that the effect of inclusion on the Scottish, Northern Ireland, or England and Wales lists will be a bar from regulated activity across the UK.
	The amendments also give the Secretary of State an order-making power that he can use to ensure that a person is considered for listing by the most appropriate barring authority, rather than by the barring authority that happens first to become aware of information that could lead to listing. For example, we intend that if the IBB receives information about a person who is not subject to monitoring in England and Wales, but who is a member of the Scottish scheme, Scottish Ministers and not the IBB should consider new information on that person's case.
	Amendment No. 190 provides that the Secretary of State must tell Scottish Ministers where the IBB includes a person on a barred list. This will allow Scottish Ministers to ensure that the person cannot work with either children or vulnerable adults in Scotland.
	Amendment No. 144 provides that certain powers to make secondary legislation, to the extent that they affect Wales, are to be exercised by the Welsh Ministers. These are powers that significantly cut across devolved matters, such as the requirements around checks for school governors. This clause also requires the Secretary of State to obtain the agreement of Welsh Ministers before exercising secondary legislation-making powers that provide for requirements and powers that will affect the National Assembly for Wales in its functions as an inspectorate. Amendment No. 191 provides that the IBB may provide information to Welsh Ministers relevant to their functions—formulating policy and monitoring delivery of that policy.
	These amendments will ensure that the vetting and barring scheme operates successfully across the UK and I commend them to your Lordships' House.
	Moved, That the House do agree with the Commons in their Amendments Nos. 143 and 144.—(Lord Adonis.)

Lord Adonis: My Lords, on that latter point I speak from deep memory from our consideration of this precise issue last time, so I may need to follow this up with a letter to the noble Baroness. As I recall it, all such notifications are sent by appropriate recorded delivery, for which a signature is required. Therefore, although we cannot absolutely guarantee that documentation will be taken in, this gives reasonable assurance that the document will be properly received or returned to sender. If there has been any update on that position in the last few months, I will let the noble Baroness know. It is probably deeply dangerous for me to speak from memory in giving her a direct response to that.
	On foreign offences and inclusion on foreign barred lists, a point also raised by the noble Baroness, Lady Buscombe, I should stress that the current barring schemes—POCA, POVA and List 99—are based on employer referrals and can take account of any information that they receive, including foreign offences, if notified by the UK police of allegations of behaviour abroad. I am advised that there has been a case where an English employer has referred an individual to the POCA scheme as a result of allegations of behaviour when abroad while working for the employer and that that has resulted in a bar.
	We envisage the provisions for specifying foreign barred lists as prescribed criteria under the new scheme as taking account of future developments in other countries. We are aware of the operation of barred lists in Australia, New Zealand, the United States and Canada. The noble Baroness, Lady Walmsley, referred to our fellow European states and the new accession countries. She asked whether we will be in communication with them. We will certainly continue to be in communication with them—whether for the purposes that she specified: that they might have things to learn from us; or for the purposes of us being able better to secure information from them about the history of individuals as they present themselves to work with employers in the United Kingdom. I can give those assurances and I will cover any other matters in correspondence.

Lord Adonis: My Lords, I beg to move that the House to agree with the Commons in their Amendment No. 166. The amendment removes the Lords privilege amendment.